Laws Governing Service & Emotional Support Animals in the Workplace

What happens when your employee wants to bring an emotional support animal/pet to the workplace? Emotional support animals are considered to provide comfort, therapy or companionship to individuals but generally are not trained to perform any specific task. They can be dogs, rabbits, cats, snakes, fish, or any other pet animal owned by the employee.

A common misconception is that the laws governing the use of emotional support animals and service animals in the workplace are the same as those governing the treatment of the disabled in terms of public accommodations and the provision of governmental services. The opposite is true.

Title I of the Americans with Disabilities Act of 1990, as amended (“ADA”) covers employment and applies to private employers with 15 or more employees, state and local governments, employment agencies, and labor unions. It requires covered employers to reasonably accommodate qualified individuals with a disability if they can do so without causing undue hardship on the business. Title I does not address, qualify, or define the term “service animal” or “support animal.”

Titles II and III of the ADA, on the other hand, prohibit discrimination in all programs, activities, and services of public entities and prohibit private places of public accommodation from discriminating against individuals with disabilities. Generally, Title II and Title III entities must permit “service animals” to accompany people with disabilities in all areas where members of the public are allowed to go.

Under Titles II and III, “service animals” are defined as dogs that are individually trained to do work or perform tasks for people with disabilities. Currently, the only type of animal that can qualify as a federally recognized service animal is a dog. Service animals can assist with physical disabilities, such as blindness, as well as psychiatric disabilities, such as a dog trained to detect if its owner is about to have an anxiety attack and take specific action to avoid the attack or lessen its impact. Unless the animal can meet that definition, it cannot be classified as a service animal.

Is an employer required to allow an employee to bring an animal into the workplace?

Unlike the requirement that a public accommodation allow a service animal onto the premises, an employee has no automatic right to bring an animal into the workplace, even if that animal that qualifies as a “service animal.” Rather, employers should treat the request to bring an animal into the workplace as a request for an accommodation under the ADA. This would require the employer to engage in the interactive process to determine whether the employee has a qualified disability, the limitations imposed by the employee’s disability, how the animal will assist the employee in performing the employee’s job duties, and whether the presence of the animal would pose an undue hardship.

If the claimed need for the animal is not based on a physical or mental disability (thus, an emotional or comfort need), it is probably unlikely the animal will have any specific training to assist the employee with tasks related to the claimed disability and would not be classified as a service animal under the ADA and its regulations. But employers should still engage in the interactive process to confirm information about the animal and the employee’s purported need for one. The request should be treated as any other accommodation request, evaluated on a case-by-case basis, to determine what essential job functions cannot be performed because of the disability and how the animal assists in performing those functions. This includes, but is not limited to:

• Documenting the receipt of the request for the accommodation and the employee’s representations.
• Requesting and gathering information from the employee, the employee’s medical provider, or other sources, such as an animal trainer, to understand:
  • whether the employee can perform essential job functions without the animal;
  • why the employee needs the animal; and
  • what tasks or functions the animal performs to assist the employee in performing essential job functions.
• Investigating the potential problems that an animal in the workplace may create (including health and safety concerns).
• Allowing the employee to bring the animal or other individuals to an interactive process meeting so that the employee can demonstrate the animal’s abilities, how it will assist the employee, and whether it will disrupt the workplace.
• Requesting documentation if it is not obvious that the employee needs an accommodation or how the animal helps the employee.

Ultimately, like most accommodation requests, whether to allow a service or other animal in the workplace will be a fact-sensitive inquiry. Employers would be wrong to assume that an emotional support animal is never allowed in the workplace. The critical inquiry is whether the accommodation is reasonable and does not impose an undue hardship on the employer. Engaging in the interactive process in good faith as described above, even if an employer ultimately denies the employee’s request, can help build a strong defense against a later claim of discrimination or liability.

For questions regarding service and emotional support animals in the workplace, contact a member of Barrett McNagny's Labor and Employment team listed below. 

About the Author: Carta H. Robison works with employers in all aspects of employment law, including wage and hour disputes, employment contracts and defending employers against claims brought under the Americans with Disabilities Act (ADA), the Family and Medical Leave Act (FMLA), and the Fair Labor Standards Act (FLSA). She can be reached at chr@barrettlaw.com or 260.423.8910.